Case Law UpdatePreparing a DWI defense? Law Tips is here to help. Our blog this week provides case law reviews by Mark A. Foster, Foster O’Daniel & Hambidge, LLP, Evansville. Mark is a frequent lecturer for ICLEF on the topics of DWI and Criminal Defense. While chairing ICLEF’s seminar entitled “DWI @ Trial,” he provides a thorough update on case law. Here are a few selected cases from his presentation that I hope will assist in your defense preparations:

• OPERATIONWillis vs. State of lndiana, Ind. App. 2011 Unpub.
Willis was observed driving his vehicle left of center on several occasions and was stopped by the arresting officer. The officer noticed a strong odor of alcoholic beverage coming from inside the car and the defendant was extremely agitated. Further, the defendant had to pull himself from the vehicle and leaned against the vehicle as he talked with the officers at the scene. The defendant refused to submit to any field sobriety testing and additionally refused the breath test. The court found that there was sufficient evidence for the finding that the defendant operated a motor vehicle while intoxicated. At trial the defendant pled guilty to the enhancement, however, challenged the validity of the prior conviction on appeal. The Court of Appeals noted that since he had pled guilty he could not challenge the propriety of the conviction on direct appeal.

• REASONABLE SUSPICION TO STOPCollier vs. State of lndiana, Ind. App. February 24, 2011, Unpub.
In Collier a Marion County Sheriff’s Deputy saw two (2) individuals and when they noticed him they turned around and walked the other direction. The deputy then ordered them to stop and he approached and asked for identification. The defendant argued that the stop was based upon reasonable suspicion and the State responded that if it was not based upon reasonable suspicion it was a consensual encounter. The court held that there was no reasonable suspicion and further stated that if an individual would not feel free to leave or disregard the police and go on about his business the encounter is not consensual.

In Terry (1) the court considered evidence for finding that Terry operated a vehicle while intoxicated. The facts are that a witness had heard a crash behind his house and upon investigation saw a vehicle owned by Terry driving away. The witness talked to Terry and testified he was slurring, swaying back and forth and stated he had hit the garage and that he had had a couple beers. The arresting officer responded and Terry had refused the breath test. The court find that the evidence was sufficient to determine Terry operated a vehicle while intoxicated, rejecting Terry’s claim that there was no evidence he was intoxicated at the time he operated the vehicle. The court in sentencing Terry suspended his license for two (2) years and ninety (90) days. The court on rehearing correctly stated that the court could not suspend four two (2) years and ninety (90) days and instead interpreted the original suspension of a ninety (90) day suspension which was consecutive to the two (2) year administrative suspension for refusal of the breath test.

• ENDANGERMENTDorsett vs. State of lndiana, Court of Appeals, 921 N .E.2d 529, 2010
On review, the court held that, while the State presented sufficient evidence to show that defendant operated his vehicle while intoxicated, it failed to show that defendant’s operation of his vehicle endangered a person, as was required under Ind. Code §9-30-5-2(b) to convict defendant of the charged offense as a Class A misdemeanor. To prove endangerment, the State relied on its evidence that defendant was intoxicated. However, the State was not permitted to claim that the same evidence proved the additional element of endangerment but was required to submit proof of endangerment that went beyond mere intoxication. While the evidence was insufficient to support defendant’s conviction under Ind. Code §9-30-5-2(b ), the evidence was sufficient to convict defendant of driving while intoxicated as a Class C misdemeanor under Ind. Code §9-30-5-l(a).

Thanks again to ICLEF faculty member Mark Foster for sharing his expertise once again through the Law Tips column. You can take advantage of the full case update provided by Mark by viewing either the Video Replay or Online/On Demand Video of “DWI @ Trial”. Click here.

Next week’s Law Tips will present more DWI defense insights, narrowing in on techniques for challenging the police officer’s observations and basis for the stop. If you would like to subscribe to the RSS feed for Law Tips, click on our link at the top of this page.

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